Pierce v. Hillsborough County

Hibbard, J. In State v. Smith, 49 N. H. 155, the second head-note recognizes the right of a complainant to half of the fine in a prosecution for a violation of the law prohibiting the sale of spirituous liquor, although the offence may have been prosecuted at the expense of the state; but it does not appear from the opinion of the court that the question was considered in that form. It is stated, in the argument of the respondent’s counsel in that case,that the complainant “simplymade the complaint; * * all subsequent was done by the state’s attorney and at the expense of the state; ” but this does not appear from the statement of facts nor from the opinion. If this was so, and if the the law is as the defendant in the present case claims, that case might have been disposed of upon this ground; but it was in fact disposed of upon another ground entirely. TVliat the views of the court, or of the judge who delivered the opinion, were upon the question which is now raised, may be conjectured, but they are not distinctly stated in the opinion. In Northumberland v. Coos, 51 N. H. 557, it was held that the plaintiff town was entitled to recover half of certain fines imposed in cases in which it had advanced fees to some of the witnesses, but it seems not to all of them, which were allowed and paid by the county, and subsequently taxed in bills of costs and collected of the respondents ; and if the result reached in that case, which appears to have been to give to the plaintiff one half of all the fines collected, can be fully sustained, it must be conceded that the present plaintiff is also entitled to recover. But we find nothing in the head-notes or in the opinion of the court to indicate that the question, whether it was necessary that the expense of prosecution should be paid by the complainant, was raised or considered at all. It appears from the opinion that the attention of the court was wholly directed to other objection to the plaintiffs’ claim. The question, therefore, upon which this case turns, is to be treated as if it were now for the first time presented for our determination. Chapter 99, sec. 21, Gen. Stats., as amended by inserting the words in brackets by ch. 8, sec. 7, act of 1870, is as follows : “ The selectmen of every town shall prosecute, at the expense of the town, every person guilty of a violation of any previous section of this chapter, of which they can obtain reasonable proof; but this provision shall not be construed to prevent any person from making complaint, and instituting and carrying on prosecutions for such offences ; and such complainant [whether a town or city by its officers or an individual] shall be entitled to one half of every fine collected through such prosecutions.” [436] 'The words “ shall prosecute at the expense of the town ” in the case of prosecutions by selectmen, and the words “ instituting and carrying on prosecutions ” in the case of prosecutions by individuals, doubtless mean the same thing, and the right of a town or city by its officers, and of an individual, to receive half of a fine must stand or fall together; and we are quite unable to perceive how it can truthfully be stated that a case is “ prosecuted at the expense ” of a town or city, or that a prosecution is “carried on” by an individual, where the prosecuting witnesses are paid from the county treasury; and we are all of the opinion that the only construction which can properly be given to the statute under consideration is, that neither a town or city nor an individual shall be entitled to recover in such a case, where the witnesses for the prosecution were wholly or partly produced at the expense or on the credit of the county. We hold not only that “ the intention of the legislature to impose such burdens and dangers ” upon tax-payers as might be occasioned by the construction contended for by the plaintiff has not been “plainly and explicitly declared,” as the court instructed the jury it ought to have been in order to justify its adoption, but that the true construction of the language which the legislature has employed is the one which was given to the jury. It seems that cases in which expenses are incurred by the county in prosecutions before justices of the peace or in police courts must stand on the same ground; but that question does not arise in the case before us. It is probably true that half of fines has, to a considerable extent, by virtue of what was supposed to have been decided in the cases cited or for other reasons, been paid to complainants in prosecutions not carried on at their expense, but there is nothing in that circumstance to justify us in giving an erroneous construction to a plain statutory provision. The instructions to the jury were sufficiently favorable to the plaintiff, and there must be Judgment on ilie verdict.